Updated EEOC Guidelines FAQ Series: Age-Related Guidance

Does the CDC advise employers to take any additional precautions for individuals age 65 and older?

Yes. The CDC has noted that individuals age 65 and over are at a higher risk for development of a severe case of COVID-19, should they contract it. Therefore, the CDC has encouraged employers to offer maximum flexibility to individuals age 65 and older.

Do employees age 65 and over have protections under federal law?

Yes. The federal law which protects against age discrimination is known as the Age Discrimination in Employment Act (“ADEA”). Workers age 65 and older may also be protected by the federal Americans with Disabilities Act (“ADA”).

What is the ADEA, and what protections does it provide?

The ADEA is a federal law which prohibits employment discrimination against individuals age 40 and older. For example, the ADEA would prohibit an employer from intentionally excluding an individual from the workplace based on his being 65 years or older. This prohibition would hold true even if the employer acted for altruistic reasons, such as protecting the employee due to a higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include the right to reasonable accommodation due to age. However, it should be noted that employers are free to provide additional flexibility to workers age 65 and older due to their increased risk. This is not barred by the ADEA, even if younger workers are treated less favorably based on age in comparison.

What is the ADA, and what protections does it provide?

The ADA is a federal law which is meant to protect individuals with disabilities from employment discrimination, as well as discrimination in other areas of life. The ADA applies to all private employers, state and local governments, employment agencies, and labor unions with 15 or more employees.

Employees age 65 and older may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. If this is true, these employees may request reasonable accommodation for their disability rather than their age.